Haryana

Kurukshetra

195/2017

Mukesh - Complainant(s)

Versus

Fast Food - Opp.Party(s)

Akhil Bhasin

19 Apr 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

Complaint Case No.195 of 2017.

Date of instt: 19.9.2017. 

                                                                         Date of Decision: 19.04.2019.

 

Mukesh Kumar (DOB: 27.04.1987) son of Sh. Lekh Raj, resident of VPO Umri, Tehsil Thanesar, District Kurukshetra.

                                                                …..Complainant.

                        Vs.

1. M/s Fast Food, Parakeet Pipli, G.T. Road, Pipli, District Kurukshetra through its partner/ proprietor.
2. M/s Asian Lacto Industries Ltd., H. No. 378, Kheri Markanda, Near Aggarwal Atta Chakki, Thanesar, District Kurukshetra, through its authorized person (Distributor/ Depot of the manufacturer firm)
3. M/s Asian Lacto Industries Ltd. VPO Jandiali, Near Kohara, Chandigarh-Road, Ludhiana, through its authorized person (Manufacturer of the firm).

……Opposite parties.

 

Complaint under section 12 of Consumer Protection Act.                   

 

Before:      Smt. Neelam Kashyap, President.

                Ms. Neelam, Member.

                Sh. Sunil Mohan Trikha, Member.

                       

Present:     Sh. Akhil Bhasin, Advocate for complainant.

 Sh. Seo Ram, Advocate for opposite party No.1.

         Sh. Kuldeep Singh, Advocate for opposite parties no.2 and 3.

ORDER

                     This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Mukesh Kumar against M/s Fast Food, Parakeet Pipli and others, the opposite parties.

2.              Brief facts of the present complaint are that complainant visited the opposite party no.1 alongwith friends and purchased some eatables including one Apple soft drink namely Mr. Fresh manufactured by op no.3, distributed/ supplied by op no.2 for Rs.40/- and op no.1 issued a receipt in this regard dated 8.9.2017. It is further averred that complainant took the above said bottle with him but on the way to home, he tried to open the bottle but he found some unhygienic material in the bottle which could be some poison and dangerous to life. That the complainant contacted op no.1 and complained about the same and op no.1 stated that he purchased the said bottles from op no.2. When the complainant complained to op no.2, he stated that he has received this bottle from the manufacturer in sealed condition and he is not liable for this. Then the complainant approached op no.3 but the officials of op no.3 did not take the issue seriously. It is further averred that if the complainant or anyone else would have drunk the said soft drink, it would have caused harm to the health. That the complainant approached the ops in this regard but all in vain. That there is great deficiency in service on the part of ops and its officials. Hence, this complaint.

3.             Upon notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections regarding suppression of true and material facts. The complainant has wrongly and illegally impleaded the ops in the present false and fabricated complaint by relying on the bill which is dated 8.9.2017 on which stamp of “Fast Food Pipli, KKR” is affixed whereas the name of answering op is Satyam Fast Food NH-1, Pipli, therefore, the alleged bill dated 8.9.2017 relied upon by the complainant neither relates to the answering op nor it bears the signatures of answering op. It is further submitted that there are so many persons who are working under the name and style of Fast Food and the complainant cannot use the alleged bill dated 8.9.2017 against the answering op. Moreover, after coming into force of GST, the bill of the answering op is computerized and for example one specimen of the GST bill is attached which shows that first word in the bill is “GST”, hence the complainant has filed forged and fabricated complaint against the answering op without any cause and ground. It is further submitted that complainant is neither the consumer of the answering op nor the alleged bill relates to answering op nor the complainant purchased the alleged apple soft drink product Mr. Fresh (Beverages) from the answering op in any manner. Other preliminary objections regarding complicated question of law and facts, jurisdiction, locus standi, maintainability and estoppal and cause of action have also been taken. It is also submitted that complainant has not attached all the original documents with the complaint nor supplied any documents to the answering op. The complainant has not attached any analysis report regarding the alleged soft drink to prove the alleged unhygienic material in the same and to prove poison therein. It is further submitted that complainant has alleged to have purchased the soft drink on 8.9.2017 and he was to file the case on the same day or on the next day but he has not done so rather filed the complaint after many days which has no force in the eyes of law. On merits, the pleas taken in the preliminary objections are reiterated, all the contents of the complaint are denied and prayer for dismissal of complaint made.

4.             Opposite parties no.2 and 3 filed separate written statement taking preliminary objections that complaint is not maintainable in the present form because in the complaint, he has not mentioned the date of manufacturing and has not supplied the photographs of the bottle in which the mark and manufacturing date of the bottle can be verified that the mark on the bottle is of the answering op and the manufacturing date of the bottle is in order or not. There is every possibility that the bottle in question was manhandled and was tampered with by some anti company/ person in order to effect the sale of the ops no.2 and 3 and as such complaint is required to be dismissed with special costs as the bottle in question has been purchased by complainant in collusion with op no.1 after expiry of the manufacturing date and op no.1 has intentionally sold out the said bottle to the complainant and this fact is proved from the fact that complainant has not sought any relief qua op no.1 which prima facie shows the collusion between complainant and op no.1. It is further submitted that complaint is filed without any analysis report from the competent authority. The bottles may have contained a bogus product illegally marketed under its brand name. So, there is no negligence on the part of answering ops and all care and precautions have been adopted by the answering ops whenever they filled their cold drinks bottles. It is further submitted that it is specifically denied that there is any unhygienic material as alleged in any bottle of the answering ops. The alleged bottle was tampered with and manhandled, so the same was also not in a position to send for analysis but inspite of this, the same was sent. The report of analysis is wrong and incorrect. With these averments, dismissal of complaint prayed for.

5.             The complainant tendered affidavit Ex.CW1/A, cash/ credit memo Ex.C1 and report of Food Analyst District Food Laboratory, Karnal Ex.C2. Ops no.2 and 3 tendered affidavit Ex.RW1/A whereas OP no.1 tendered affidavit Ex.RW2/A and documents Ex.R1 and Ex.R2.

6.             We have heard learned counsel for the parties and have perused the case file carefully.

7.             The complainant has alleged that bottle of apple soft drink which was purchased by him from opposite party no.1 was having some unhygienic material and it could be harmful for the life if the same would have been consumed by anybody else. The complainant in order to prove his case has furnished his affidavit Ex.CW1/A in which he has reiterated all the averments made in the complaint. He has also placed on file cash/ credit memo dated 8.9.2017 Ex.C1 alleged to have been issued by op no.1. Though, the op no.1 has asserted that the said receipt dated 8.9.2017 does not relate to op no.1 but the op no.1 has not proved its version by way of reliable and convincing evidence and it can be said that documents relied upon by op no.1 regarding name and style of shop of op no.1 as Satyam Food are manipulated and are result of afterthought. It is not understandable that if the complainant has not purchased the said bottle from op no.1 then why he will level allegation against op no.1 as the bottle is not manufactured by op no.1 and he simply sold the same to the complainant in packed condition as received from the supplier/ manufacturer. The bottle in question was sent to the Food Analyst, District Food Laboratory, Karnal and the said Laboratory vide its report Ex.C2 while mentioning the batch number and name of the manufacturer as op no.3 has reported that sample is having suspended extraneous matter on the top whereas it shall be free from the same and that FSSAI logo is not given on the label as required under the Provision of Regulation 2.2.1 (7) of chapter 2 of FSS Act (Packaging and Labeling) Regulation 2011. It is further mentioned that sample is misbranded and having extraneous matter. So, it is proved on record that bottle in question sold by op no.1 to the complainant which was distributed by op no.2 and manufactured by op no.3 was misbranded having unhygienic material in it and the soft drink was not fit for human consumption. The ops no.2 and 3 have not led any cogent and convincing evidence that bottle in question was not manufactured by op no.3 and is duplicate. The ops have caused deficiency in service and harassment to the complainant. The authorities relied upon by learned counsel for complainant in case titled as Hindustan Coca-Cola Beverages Pvt. Ltd. Vs. Ramesh Prajapat and anr. 2016 (4) CLT 326 (NC) and Hindustan Coca cola Beverages Vs. Ramesh Prajapat & anr. Decided on 29.2.2016 by Hon’ble State Commission Jaipur (Rajasthan) are fully applicable to the facts and circumstance of the present case. The judgments relied upon by learned counsel for ops in cases titled as Consumer Action Group Vs. Cadbury India Ltd. & Anr. 2000 (1) C.C. Cases (SC) 216, Mohinder Kumar Vs. State of Haryana, 2004(1) C.C. Cases (SC) 177 and Ashok Kumar Vs. State of Haryana, 2014 (1) FAC 246 (P&H) are not disputed but same are not applicable to the facts and circumstances of the present case.

8.             In view of the above, we allow the present complaint and direct the opposite parties to pay a sum of Rs.10,000/- as compensation to the complainant for harassment and mental agony within a period of 30 days from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @9% per annum from the date of order till actual realization. We further direct the ops to pay a sum of Rs.5000/- as litigation expenses to the complainant. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.

Announced in open Forum:

Dt.:19.04.2019.  

                                                                        (Neelam Kashyap)

                                                                        President.

 

(Sunil Mohan Trikha),           (Neelam)       

Member                             Member.